United States District Court, D. Colorado
ORDER DENYING DEFENDANTS' MOTIONS FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR PARTIAL
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE.
matter is before the Court on the parties' competing
motions for summary judgment:
1. Defendants Colorado Springs Utilities Board, Colorado
Springs Utilities, and the City of Colorado Springs'
(collectively, “Defendants”) Motion for Summary
Judgment (Doc. # 33), and
2. Plaintiff WildEarth Guardians' Motion for Partial
Summary Judgment (Doc. # 34).
reasons described below, the Court denies Defendants'
Motion for Summary Judgment (Doc. # 33) and denies
Plaintiff's Motion for Partial Summary Judgment (Doc. #
WildEarth Guardians is a nonprofit, membership organization
that seeks to reduce air pollution and its adverse effects in
the western United States. (Doc. # 15 at 3-4.) Plaintiff has
more than 200, 000 members from across the country,
approximately 483 of whom live in Colorado Springs, Colorado.
(Id. at 3.)
City of Colorado Springs is a home-rule municipality
incorporated in Colorado. (Doc. # 33 at 4.) Defendant
Colorado Springs Utilities is an enterprise of the City and
operates the Martin Drake Power Plant pursuant to the city
charter and the state constitution. (Id.) Defendant
Colorado Springs Utilities Board is composed of the city
council's members and is the Board of Directors of
Colorado Springs Utilities. (Id.)
Martin Drake Power Plant (the “Plant”) is located
at 7000 Conejos Street, Colorado Springs. (Id. at
5.) Relevant here, the Plant has three coal-fired,
electricity generator units: Units 5, 6, and 7, built in
1962, 1968, and 1974, respectively. (Id.) Unit 5 was
permanently shut down in December 2016. (Id.) Units
6 and 7 remain in operation. (Id.)
CONTROLLING LAW, REGULATIONS, AND PERMIT
The Clean Air Act
Clean Air Act (the “Act” or the
“CAA”) is a comprehensive federal scheme that
regulates air emissions from stationary and mobile sources,
with the aim of “protect[ing] and enhanc[ing] the
quality of the Nation's air resources.” 42 U.S.C.
§ 7401(b)(1). The Act directs the Environmental
Protection Agency (the “EPA”) to establish
National Ambient Air Quality Standards, which define levels
of air quality necessary to protect the public health. 42
U.S.C. § 7409; 40 C.F.R. § 50.2(b). States are
required to develop State Implementation Plans
(“SIPs”), applicable to certain industrial
sources of air pollutants, in order to achieve these
standards. 42 U.S.C. § 7410(a)(1). SIPs are subject to
the EPA's approval. 42 U.S.C. § 7410(a)(3)(B).
provides for at least two enforcement mechanisms: first, the
EPA may order compliance, issue an administrative penalty, or
bring a civil action against the violator. 42 U.S.C. §
7413(a)(1); 40 C.F.R. § 52.23. Second, and most
important to this matter, the Act contains a citizen suit
provision. 42 U.S.C. § 7604. The citizen suit provision
empowers “any person” to “commence a civil
action on his own behalf” against “any person . .
. who is alleged to have violated (if there is evidence that
the alleged violation has been repeated) or to be in
violation of . . . an emission standard or limitation.”
42 U.S.C. § 7604(a)(1). The district court in which a
citizen suit is filed has jurisdiction to provide injunctive
relief and “to apply any appropriate civil
penalties.” 42 U.S.C. § 7604(a). Such civil
penalties may be up to $37, 500 per day for each violation
committed between January 12, 2009, and November 2, 2015, and
up to $93, 750 per day for each violation committed after
November 2, 2015. 40 C.F.R. § 19.4.
titles of the Clean Air Act are relevant to the instant suit.
First, Title IV, known as the Acid Rain Program, is intended
to reduce the adverse effects of acid deposition by mandating
reductions in emissions of sulfur dioxide and nitrogen
oxides. 42 U.S.C. § 7651(b). Certain industrial sources,
including power plants, are required to install and operate a
continuous emission monitoring system (“CEMS”) at
each source of such emissions to “provide on a
continuous basis a permanent record of emissions and
flow.” 42 U.S.C. § 7651k(a); 42 U.S.C. §
7651a(7); see generally 40 C.F.R. § 72. When
required CEMS data is not available, “and the owner or
operator cannot provide information, satisfactory to the
[EPA], on emissions during that period, ” the EPA
“shall deem the unit to be operating in an uncontrolled
manner during the entire period for which the data was not
available.” 42 U.S.C. § 7651k(d).
Title V of the Clean Air Act requires certain industrial
sources to obtain and operate in compliance with an operating
permit. 42 U.S.C. § 7661b(a). An operating permit must
include “enforceable emission limitations and
standards, a schedule of compliance, [and] a requirement that
[a] permittee submit to the permitting authority . . . the
results of any required monitoring.” 42 U.S.C. §
7661c(a); see generally 40 C.F.R. § 70.
such form of required monitoring is opacity monitoring. 40
C.F.R. § 75.10(a)(4). Power plants and other certain
industrial sources must maintain a continuous opacity
monitoring system (“COMS”) with an automated data
acquisition system “for measuring and recording the
opacity of emissions (in percent opacity) discharged to the
atmosphere” every six minutes. Id.; 40 C.F.R.
§ 75.10(d)(2). A source's COMS must be in operation
and measuring opacity “at all times that the effective
unit combusts any fuel[, ] except . . .
during periods of calibration, quality assurance, or
preventative maintenance . . ., periods of repair, periods of
backups of data . . ., or recertification, ” and at all
times “following combustion when fans are still
operating.” 40 C.F.R. § 75.10(d) (emphasis added).
state is charged with administering its own Title V operating
permit program, subject to the requirements of Title V and to
the approval of the EPA. 40 C.F.R. § 70.1(a). The
Colorado Department of Public Health and Environment's
(“CDPHE”) operating permit program was approved
by the EPA on October 16, 2000. 40 C.F.R. § 70,
App'x A; see Colo. Rev. Stat. § 25-7-114.3.
Pursuant to Colorado regulations, a stationary industrial
source may not “allow or cause the emission into the
atmosphere of any air pollutant that in excess of 20%
opacity” in any six-minute period, except when the
source is undergoing “process modification, or
adjustment or occasional cleaning of control
equipment.” 5 C.C.R. §§ 1001-3, II.A.1-4.
The Plant's Operating Permit
issued the Plant its initial Title V operating permit on
November 1, 2002, and a revised Title V operating permit on
April 13, 2004. See (Doc. # 33-1 at 3-81.) The
Plant's operating permit incorporates COMS requirements
set forth in the federal regulations, see 40 C.F.R.
§ 75, and in Colorado's regulations, see 5
C.C.R. §§ 1001-3, II.A.1-4. (Doc. # 33-1 at 31,
filed this action against Defendants on February 9, 2017.
(Doc. # 1.) In its Amended Complaint, Plaintiff alleges a
single claim for relief, alleging that the Plant violated
continuous opacity monitoring requirements, in breach of
Titles IV and V of the Act, federal regulations,
Colorado's operating permit plan and regulations, and the
Plant's Title IV operating permit. (Doc. # 15 at 15.)
Specifically, Plaintiff asserts that there was at least 18,
930 minutes of “COMS downtime” between April 11,
2011, and December 13, 2015, during which time Defendants
failed to monitor opacity of emissions at the Plant.
(Id.) Plaintiff further alleges that these
unmonitored minutes “[did] not fall within one of the
limited downtime exceptions” identified at 40 C.F.R.
§ 75.10(d) and were thus “unexcused.”
(Id.) Because opacity is monitored and reported in
six-minute intervals, Plaintiff contends that the 18, 930
minutes of unmonitored “downtime” represents 3,
155 violations of the Clean Air Act and its implementing
regulations. (Id.) Plaintiff seeks declaratory
relief; an order to Defendants, mandating compliance with
COMS requirements; civil penalties against Defendants; and an
award of reasonable costs and attorneys' fees.
(Id. at 16.) Defendants timely answered on May 23,
2017. (Doc. # 19.)
moved for summary judgment on September 26, 2017, and argue
that Plaintiff lacks standing and that its claim therefore
must be dismissed for lack of jurisdiction. (Doc. # 33.)
Plaintiff filed a response brief on October 17, 2017 (Doc. #
36), to which Defendants replied on October 31, 2017 (Doc. #
moved for partial summary judgment on September 26, 2017,
seeking summary judgment that Defendants violated the Clean
Air Act on 91 occasions (totaling 1, 848 six-minute
increments) because none of the statutory exceptions to COMS
requirements applied to those 91 instances of
“downtime”. (Doc. # 34.) Defendants ...